If the Bank of Redemption had brought a suit in its own name for the collection of the notes transferred nominally to Crippen, the case would present no superior equity entitling the bank to appropriate the property attached in this state exclusively to its own debt. Equity as well as comity would require the application of the property to the payment of all the creditors of the insolvents, under the insolvency laws of the state of the domicile of the bank. Kidder v. Tufts, 48 N.H. 121; Eddy v. Winchester,60 N.H. 63.
The plaintiff offers to prove that the transfer of the notes "was an absolute and bona fide sale of the same, giving to him the absolute ownership and control of the same." But it is clear that the finding of such a fact would have to be set aside as being in direct and irreconcilable conflict with the admitted facts in the case, from which the only conclusion is that the transfer of the notes was a mere cover, to enable the bank to gain a preference over other Massachusetts creditors.
The plaintiff cites Proctor v. National Bank of the Republic,152 Mass. 223, in support of the right to maintain his suits for the collection of the notes. But the reasons which controlled the majority of the court in that case in refusing to compel a Massachusetts creditor, who had obtained an advantage over the other creditors by his proceedings in another state, to restore the property or its value to the assignee of a Massachusetts insolvent debtor, do not exist in this case. There is no want of jurisdiction of the property or of the proper parties; and equity requires that the bank, under cover of suits in the name of a New Hampshire citizen, should not obtain an advantage over the other creditors in Massachusetts. *Page 212
The leave given the plaintiff to defend the Strafford suits should be revoked (Levy v. Woodcock, 63 N.H. 413; Martin v. Wiggin, ante, p. 196) and the temporary injunction dissolved.
Bill dismissed.
ALLEN, J., did not sit: the others concurred.
The plaintiff moved for a rehearing.
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